According to its website, “The JPR Commission is responsible for developing performance standards and thresholds, and conducting performance reviews of justices and judges who are merit selected and subject to retention elections.”

So with early voting in full swing, the Commission’s judicial evaluations are supposed to help voters wade through a morass of some 50+ judicial unknowns on their ballots.

But what made news was that the Commission actually found two judges worthy of non-retention recommendations. They were Maricopa County Superior Court Judge Benjamin Norris and Pima County Superior Court Judge Catherine Woods — both deemed well below the Judicial Performance Review Standardsused to evaluate judges.

Sure the newspaper editorial quoted the Commission’s Chairperson who called the two non-retention votes “historic.” But too bad the paper didn’t adequately explain how truly historic — as in rarer than a Phoenix snowball.

“Everyone’s special . . . .”

For all its self-congratulated value during its 22 year existence, the JPR Commission has generally functioned as an election cycle rubber-stamp consistently grading judges with mean evaluation scores well above 98%. Everybody’s not just special — but really special.

And since like most of Arizona’s legal establishment, the Commission’s hardly a paragon of transparency1, it’s tough to nail down precisely how rarefied these two non-retention recommendations were. Depending on the source, it’s either been once or twice before that Commission members have found pluck enough to recommend a judicial non-retention. According to one source, it’s happened only once before — in 1998. Yet another source claims it also happened in 2008.

No matter, though, as in each case the public didn’t pay any mind. Regardless of the recommendations, voters retained the judges anyway!

Since Arizona merely requires “a majority of those voting” to retain a judge, newspaper Op-ed and Commission votes notwithstanding — I won’t be surprised if it happens again this year. So much for achieving its intended purpose with all the efficacy of a hamster on a broken wheel.

Nothing succeeds like self-congratulation.

In September, in a laudatory Op-ed to commemorate this year’s 40th anniversary of Arizona’s judicial merit selection system, Arizona’s State Supreme Court Chief Justice self-interestedly explained “Why Arizona has some of America’s best judges.”

While passing praise all around, at least Chief Justice Bales parenthetically conceded that “Some have observed that Arizona’s voters do not often reject judges who are up for retention.”Talk about understatement.

Additionally, a law review article recently noted that “A few have argued that the JPR program does not work to “weed out” bad judges, because the Commission rarely votes that a judge “Does Not Meet” standards, and when the Commission does issue such a vote, the voters nonetheless retain the judge.

“Although that is one way to evaluate the data,” the authors explained, “an alternative assessment is that the data demonstrate the merit-selection system’s success in appointing high-quality judicial applicants. That is, the data may instead show that the merit-selection system is attracting and retaining highly competent judges who are performing well and do not deserve “does not meet standards” votes or to be voted out of office.”2

Frankly, this “alternative assessment”is probably a stretch. The problem with drawing such conclusions is best summed up by the aphorism, “the absence of evidence is not evidence of absence.” Or in other words, we’re expected to accept the fallacious logic that X is true because there’s no proof X is false.

That the Commission almost always fails to muster “Does Not Meet”standards votes — or that it rarely votes to non-retain — or that an overwhelmed electorate has to play “Eeny, meeny, miny, moe”on scores of judicial unknowns — hardly amounts to proof positive that merit selection cornered the market on the high performing and highly competent.

What it does mean, however, is that after 40 years, merit selection is tantamount to lifetime appointment.

(Dan Pero’s timely, well-written Op-ed dismantles the specious argument for the supposed magic cure of judicial merit selection. When it comes to judicial selection methods, there’s no such thing as perfection. Reblogged with express permission)

Are Appointed Judges Really More Virtuous?

By Dan Pero

Blogger at American Courthouse and President of the American Justice Partnership, which promotes legal reform at the state level.

The conviction of Pennsylvania Supreme Court Justice Joan Orie Melvin on public corruption charges has unleashed a torrent of hand-wringing about the need to end democratic judicial elections. Four former PA governors have now come out in support of a bill to adopt “merit” selection, where the governor would appoint a judge from a slate of nominees hand picked by a commission stacked with elite lawyers.

It would be nice to think that ending elections would magically make our public servants more virtuous, but there doesn’t appear to be any real evidence to support this case.

In Florida a few years back, Judge Thomas E. Stringer, Sr. resigned from office after it was discovered he was helping a stripper hide over $315,000 in assets from her creditors. Stringer later pled guilty to bank fraud.

Also in Florida, in 2011 District Court Judge Paul Hawkes – known as the “Taj Mahal judge” – resigned from office amid questions about the construction of a $50 million marble and mahogany-laden new courthouse he helped oversee. According to news reports, Hawkes was accused of destroying public records related to the court’s budget and pushing furniture vendors to pay for a trip for Hawkes and two relatives.

Even federal judges, who undergo intense scrutiny in appointment, including a rigorous review process by the American Bar Association, are not immune to scandal.

Judge Thomas Porteous of the Eastern District of Louisiana was impeached by the U.S. House of Representatives and convicted by the U.S. Senate following evidence he had taken bribes from local attorneys and businessmen with cases before his court and later lied about his actions to the FBI.

Then there’s Judge Edward Nottingham of the U.S. District Court of Colorado, who reportedly ran up a $3,000 bar tab at a strip club, used his government-issue phone to make “dates” with call girls, and spent hours cruising porn sites on courthouse computers. One self-described prostitute claimed Nottingham coached her to “lie to federal investigators” about their relationship.

Each of these judges was appointed, rather than elected, some under the so-called merit selection system Marks and other anti-election proponents support for Pennsylvania. Marks says this new system is needed because judges seeking election often receive campaign contributions from lawyers and special interest groups who may appear in the courtroom.

Yet if the problem is too much influence by lawyers, it’s hard to see how merit selection will solve it.

Merit selection proposals in Pennsylvania call for the creation of a 15-member Appellate Nominating Commission, with seven “public” members and four each appointed by the Governor and the General Assembly. The experience in other states suggests these nominating commissions quickly become dominated by legal special interest groups.

A few years back in Missouri, the birthplace of merit” selection, the former President of the Missouri Association of Trial Lawyers was nominated to fill a vacancy on the state Supreme Court – a nomination made possible by a merit selection commission that included both a former and current board member of the Missouri Association of Trial Lawyers, plus the wife of one of the state’s most prominent trial lawyers. As a Wall Street Journal editorial put it, rather than producing judges based on merit, Missouri’s selection process has “handed disproportionate power to trial lawyers and state bar associations,” resulting in a system that “elevates nominating commission cronies.”

It’s hard to see how a merit selection commission dominated by lawyers meeting in the proverbial smoke-filled room addresses the problem of too much potential special interest influence.

The point here is that every system for selecting judges – democratic elections, appointment systems, merit selection – will produce both good and bad judges. Public corruption will be around as long as there are public servants. The key is to keep the judicial selection process open, transparent and accountable. Merit selection accomplishes none of these goals.

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Posted at American Courthouse, the personal blog of Dan Pero, March 18, 2013. Reblogged and reposted with express written permission of Dan Pero, April 15, 2013.

So as I note in my article how the ideal of judicial independence remains preferentially ascendant with the legal establishment, it’s a good thing that every once in a while — the other equally important but oft-subordinated virtue — judicial accountability — finds a momentary albeit informal expression in the hoi polloi’s public eye.

First among the week’s judicial smackdowns was that involving Northern California U.S. District Court Judge Lucy H. Koh who is unquestionably familiar with the Code of Conduct for United States Judges and how it’s probably not O.K. to verbally ball-peen counsel for one of the litigants with the following caustic slapdown: “I mean, come on. Seventy-five pages! Seventy-five pages! You want me to do an order on 75 pages, (and) unless you’re smoking crack, you know these witnesses aren’t going to be called when you have less than four hours.”

But then it does seem that, of late, that a certain part of the Code is sometimes overlooked — the section that urges judges to “be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

More specifically, the good judge said that if reelected, President Obama was “going to try to hand over the sovereignty of the United States to the U.N. Okay, what’s going to happen when that happens? I’m thinking worst case scenario here. Civil unrest, civil disobedience, civil war maybe. We’re not just talking a few riots here and demonstrations. We’re talking Lexington-Concord take up arms and get rid of the guy.” Now there’s a jurist willing to go that extra injudicious mile farther than Montana U.S. District Chief Judge Richard Cebullwhen it comes to demeaning the current occupant of the Oval Office.

With respect to the post-autopsy remains, Judge McCleary said, “I’m not going to let the county be out the expense of going and picking up his nasty-ass body. If it cost us $200 to go pick him up, I’m not going to pay for it. The family can take care of that. I have no sympathy for him or the family.”

Former Maricopa County Attorney Andrew Thomas lost his law license. He had the proverbial book thrown at him — all 74,350 words of a 247-page Disciplinary Order replete with virtually an endless stream of quotable notables from Proverbs to Aristotle to Dwight Eisenhower to Shakespeare to Ben Franklin to Gandhi and even others too numerous or obscure to mention. Suffice it to say that there were so many quotations, I half expected a pearl of wisdom citing Thomas’ supposed infractions of the Marquess of Queensberry Rules. And I still think it’s a shame no one quoted ‘The Godfather of Soul.”

Thomas was disbarred because a 3-member ethics panel found among other things that he’d improperly and unethically used his office to lay siege to his political enemies by filing unfounded criminal charges against county supervisors and members of the local judiciary.

No repentance.

So Thomas was taken to the woodshed. But some might’ve preferred flattening the shed with a bulldozer with him in it now that Thomas has shamelessly chosen not to hide in ignominious seclusion. Since his disbarment, he’s instead been running around town playing the martyr-card. Never mind his public humiliation. The defrocked lawyer is no chastened flagellant penitentially scourging himself before donning his button-down hair shirt.

But no matter. Thomas has been making speeches, doing interviews and trying his best to appear relevant as a self-described crusading reformer against a government he claims is rife with corruption. And by his way of thinking, what’s he got to lose?

But ironically, part of Thomas’ message during the 27 minutes or so of his radio interview was to lend support to Proposition 115, a voter referendum on the November ballot that supposedly reforms Arizona’s judicial merit selection and retention election system. The irony stems from the fact that the clueless caped crusading Thomas is supporting an initiative also endorsed by the Arizona State Bar and the Arizona Judges Association. And according to reports, Thomas was surprised to learn that. Sounds like more of the same blundering absence of due diligence that got him into trouble in the first place.

Much is made by the wing-nuts on the Right and the Left about the proposition’s so-called ‘reform’ component that requires the judicial nominating commissions to submit 8 not 3 judicial candidates to the governor. How absurd. The selection process which presents the governor with those choices is largely the same. The only change is that the bar no longer automatically has 3 slots on the judicial nominating commission for 3 of its board of governors members.

Except that the bar still vets who gets to park their butts on the nominating commissions. The bar remains the gatekeeper screening the applicants who’ll be nominated to the governor for appointment to the nominating commissions. Plus, the bar’s president still keeps a seat on the nominating commission.

No, what the legal establishment really likes about the referendum is that the ‘beat goes on.’ There are no substantive changes. Instead, what’s really been overlooked is how the establishment pulled a fast one on the intellectual dwarves at the statehouse.

The referendum actually entrenches the current system. It extends the judicial retirement age from 70 to 75 and pushes back the judicial retention election cycles for appellate judges and supreme court justices from 6 years to 8 years and from 4 years to 8 for county superior court judges.

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Credits: “Flagellants. From a fifteenth century woodcut.” Public Domain via Wikipedia Commons; “Boy with a ball,” by Kathy, kthypryn, at Flickr via Creative Commons-licensed content requiring attribution; “TV Shows We Used to Watch – 1970’s – Wrestling,” by brizzle born and bred, Paul Townsend, at Flickr via Creative Commons-licensed content for noncommercial use requiring attribution.

The September 2011 issue of “Arizona Attorney,” the state bar’s vapid public relations mouthpiece, featured an ‘atta-boy cowboy’ opinion, “Improving Merit,” by the Goldwater Institute’s Director of its constitutional litigation center.

Notwithstanding its pat-my-own-back pronouncements extolling its call for greater governmental transparency, enhanced individual rights, and expanded liberty interests, one of Goldwater’s luminaries and self-described “fan of merit selection” found himself applauding Arizona’s insular system of selecting and retaining judges. It’s a system that trumps judicial independence over electoral accountability.

The Goldwater Institute is the self-described “conservative public policy research organization,” self-proclaimed champion of “more transparency in government,” of “adherence to constitutional law,” of “individual rights” and of expanded economic freedom and liberty.

Using the old pulley approach of pulling down something else to raise up his own interests, Bolick favorably compared Arizona’s judicial selection system while teeing off on other jurisdictions whose “scales of justice” he declares aren’t as “well balanced” as Arizona’s. He advanced his argument by mentioning a couple of cute but hardly persuasive or dispositive anecdotes. One ‘war story’ was about a newly appointed Illinois judge “freshly plucked from the state legislature where he publicly opposed the policy you’re advocating.”

Second, there’s the U.S. Supreme Court’s 2002 ruling in Republican Party of Minn. v. White, which protects the First Amendment Free Speech rights of judicial candidates and allows them to announce their views on disputed legal or political issues. So what, then, if the Illinois judge was previously on record against Bolick’s policy argument?

The rich part.

But here’s the really rich part. Except for Texas, every merit selection proponent’s poster boy jurisdiction, the other examples Bolick complains about, New York and Florida are ironically like Arizona. Both have similar judicial merit selection and judicial retention systems. So much for the panacean balm of merit selection.

Of New York, Bolick noted how a court had sent mail addressed to his former employer, the Institute of Justice, as the “Institute for Injustice.” The account, however, presumed the jurist addressed the letter himself. And perhaps this is what actually happened since one can well imagine an impoverished New York – – – short-staffed, bereft of clerks, judicial assistants and otherwise unique that way.

Bolick then poked fun at “Bubba,” a Florida judge who wouldn’t recuse himself from a case where his son was marrying a union president’s daughter since the union president was one of the parties in the case. Again, it’s up to the jurist to make the determination. Moreover, thank the vague “probability of bias” test articulated in the U.S. Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. for unavailing help.

Admittedly, Illinois, the other jurisdiction he complained about, does not have merit selection. But in Cook County, specifically, there is a ham-fisted system of “slating” by political parties, which amounts to a merit-selection like anointing, except by political movers and shakers.

But what Cook County, Ill. does share in common with Maricopa County is first, judicial retention elections that are replete with an incredible mass of judicial retention candidates on an unwieldy ballot. The second distinction shared is that once in office, Cook County judges don’t lose retention elections. Since 1990, not a single judge has lost a retention election in Cook County. And since 1974, only two judges have lost a retention election in Maricopa County.

Indeed, speaking of overwhelming numbers, last November, Cook County had five more judicial candidates on their ballot than Maricopa or a mind-numbing 70 to 65 that voters had to pore through – – – if they were going to vote for all the judges. As former Cook County Clerk David Orr opined two years ago,“It’s Time to Get Judicial Retention Elections Off the Ballot,” “electing judges through retention contests – – – undermines the quality of judges, in part because there are too many on the ballot. Judicial retention races are a paradox, where too much democracy means no democracy at all.”

The problem with superficial, flippant analyses like Bolick’s is that they minimize serious issues. It’s one thing to be snarky but another to be substantive. It’s not easy to pull off both.

The nub of the problem, which has to be adequately resolved, is this, “As between judicial independence and judicial accountability, should one take precedence over the other?”

Unfortunately, proponents of judicial independence have always been too quick not just to toss voters under the bus but to back up the rear tires and make sure. Some even cite self-serving studies that “the American public does not understand much about how the judicial system works and are flat wrong in their understanding of the judiciary’s role in our government.”

Such advocates even go further and speciously claim that “voters do not really want to choose their judges, no more than fans really want to be involved in the hiring and firing of umpires.” Maybe, it’s just me – – – but when I’m at a ball game and in between peanuts and a beer, I never think of umpires in terms of my life, liberty or property interests.

So here’s the reality-check about the merit selection compromise, which the state bar is characterizing as “We dodged a bullet,” and which was glossed over by Bolick’s glibness. The bullet was a blank cartridge.

1. In all the ways that matter, the state bar’s influence remains the same. The bar still has a designated seat at the judicial nominating commission table and the bar still plays a crucial role in recommending the make up of the commissions’ attorney members since they will still vet all the attorney nominees to the commission.

2. Increasing the list of nominees from 3 to 8 is much ado about nothing. The commissions were previously already authorized to nominate “not less than three” and could have conceivably nominated more than three.

3. Increasing judicial terms from 6 to 8 years is no boon to the electorate. How does extending the electoral interval even farther out improve the accountability of elected officials? Moreover, Arizona voters previously voted for legislative term limits. What if instead of two-year terms, Arizona legislators came up for reelection every 8 years?

Job security? A while back, CBS MoneyWatch.com posted its “Ultimate Job Security Guide”, which said, “Unless you’re a professor with tenure or your boss is named “Dad,” you know that true employment security is all but dead. No longer does working hard and doing well at your job guarantee even a modicum of confidence about the future; the Great Recession took care of that quaint notion. Get used to the idea that you could lose your job at any time, for any reason.”

While this may be true for private sector employment, it’s not the case even in the middle of “the Great Recession,” if you’re a federal government employee or a merit-selected state judge in a jurisdiction where tenure is almost always assured through a “yes/no” judicial retention election.

“Lifetime-tenure-light.”

According to G. Alan Tarr in The Missouri Law Review, “Do Retention Elections Work?,”“from the inception of the Missouri Plan the vast majority of judges seeking retention have kept their seats.” The words “vast majority,” however, grossly understate what’s essentially lifetime employment for judges up for retention elections.

The so-called “Missouri Plan,” which originated there, is a way of selecting state judges that combines appointment and election. It was subsequently adopted along similar lines by 33 other states.

When there is a judicial vacancy, a list of candidates to fill the vacancy is selected by a nominating commission. The commission then submits its recommendations to the governor who chooses from the list. After an initial term, the judge runs unopposed for popular election for a regular term.

By calling merit selection/retention election “lifetime–tenure–light,“ I’ve compared it to the federal judiciary where Article III judges are appointed for life. Indeed, in a survey cited by Tarr concerning state supreme court justices up for retention from 1964 to 2000, less than 2% were defeated. And in other research, “Judicial retention election trends,” by Bradley University Political Science Professor Larry Aspin, from 1964 to 2006, only 56 jurists out of 6,306 were not retained. This is less than 1% or 0.88804 percent!

Parenthetically, it’ll be interesting to compare whether or not the electorate in the adjoining judicial retention state of New Mexico is equally apathetic, easy-going or uninformed when 2 unfortunate New Mexico district court judges recently in the news come up for retention again – – – assuming they’re not convicted and actually sit for retention.

Judicial retention elections bring a level of job security as good, if not better than that reported on Wednesday by USATODAY.com at “Death more likely than losing federal job.” Federal workers are the envy of private sector employees who can be downsized, laid-off and kicked-out. Federal employees don’t get fired. They retire or die in the saddle.

And like the defenders of merit selection and retention elections who pound the self-serving pulpit of prevailing professional perfection, the “USA Today” news story by Dennis Cauchon quotes a HUD spokesman who says his department’s 99.85% job retention rate is about “a skilled and committed workforce.” Adding, “We’ve never focused on firing people, and we don’t intend to start now. We’re more focused on hiring the right people.”

In April of this year, the Phoenix NPR affiliate KJZZ ran a brief segment on judicial merit selection. The show was prompted by passage of SCR 1001, which the State Bar of Arizona lauded as a big deal rather than what it really is, “much ado about nothing” as to reform – – – and ‘much ado about a lot’ as to ossifying the status quo.

Interestingly, having been turned down by bigger names, a KJZZ producer reached the nadir of the legal blogosphere to extend an invitation to “The Irreverent Lawyer” for a contrarian view. However, for a number of inconvenient reasons, not the least being the last-minute invitation or that I was sorting my sock drawer – – – but really because I was out of the office attending to visiting out-of-state family, I didn’t participate.

So instead, I opted for “a one-way ticket to Palooka-ville.” Had I appeared on the show, “I coulda been a contender. I coulda been somebody. . .” like Terry in “On the Waterfront. Oh, well.

As for SCR 10o1, the so-called reform legislation awaiting voter ratification, it leaves merit selection and judicial retention pretty much alone. The minor changes are that there’ll be at least 8 nominees sent to the Governor instead of 3; the State Bar keeps its influential role with a seat at the nominating commission table; and the Bar will continue exerting its clout through the power to anoint the 4 lawyers appointed by the Governor to the court nominating commissions.

Furthermore, the frequency of what passes for voter accountability, i.e., judicial retention elections, will be deferred even longer since judicial terms will increase to 8 years. And the length of insularity from electoral constituents will be further augmented as well since the age of retirement will go up from 70 to 75.

Toothless roaring.

And in a toothless roar, a joint legislative committee “may” conduct hearings on judges prior to retention elections – – – but these hearings are purely “informational.” So assuming the committee even meets, await the sound and effect produced by one hand clapping.

So as it turned out, the KJZZ broadcast was hardly a substantive debate. The producer did manage to scrounge up a bigger name from the more respectable academic closet and not the blogosphere. The guest was Chris W. Bonneau, a political science professor at the University of Pittsburgh and co-author of “In Defense of Judicial Elections” with Melinda Gann Hall of the University of Michigan. However, the resulting discourse suggested a straw man’s tepid advocacy for open judicial elections.

I won’t recap the highlights since there weren’t any. It was the same-old-same-old stuff about not fixing something that ain’t broken, etc.

But what was disappointing was that neither the host nor Professor Bonneau mentioned ‘the elephant in the living room’ and that is that retention elections are tantamount to lifetime tenure. Consequently, the process does nothing for accountability but everything for judicial independence since judges are almost never ousted because voters rarely pay attention.

One caller and“the rolloff effect.”

And in a testament to Arizona’s disinterest, the merit selection broadcast garnered only one caller.

Indeed, according to Professor Larry Aspin’s already mentioned “Judicial retention election trends,” “For the 1976-1994 period rolloff in Arizona was 33.2%, whereas it increased to 43.1% for the 1996-2006 period. The increase is primarily in Maricopa County where rolloff has increased substantially from an average 35.3% in the 1976-1994 period to an average 48.8% in the 1996-2006 period, peaking at 54.5% in 2004.”

And while merit selection/retention proponents are fond of saying “the system works,” Arizona rolloff grows and grows.